989 F.

2d 484

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Bienvenido GONZALEZ-GARCIA, Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
No. 92-2088.

United States Court of Appeals,

First Circuit.
March 17, 1993

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez Garcia,
Assistant U.S. Attorney, and Paul Germanotta, Assistant Regional
Counsel, Dept. of Health & Human Services, on brief for appellee.
D.Puerto Rico.
AFFIRMED.
Before Selya, Cyr and Boudin, Circuit Judges.
Per Curiam.

Claimant Bienvenido Gonzalez Garcia applied for Social Security disability

benefits on May 24, 1989. He alleged an onset date of April 15, 1988 and
claimed that he had a back condition and a mental impairment. After holding a
hearing, an administrative law judge (ALJ) found that claimant was not entitled
to disability benefits. The Appeals Council denied claimant's request for
review. The district court affirmed the Secretary's decision and this appeal

ensued.
I.
2

Claimant was injured at work when he tried to lift a steel beam. He sought
treatment at the State Insurance Fund (SIF) for back pain. According to
claimant, he was given a course of physical therapy which left him feeling
worse. At some point, he tried to resume work but could not because of the
pain. All of his past jobs involved heavy lifting with frequent bending and
stooping. Since his injury, claimant states that he cannot sit, stand or walk for
any length of time and he is constantly changing position. He cannot bend or
stoop. He cannot lift objects weighing more than five pounds.

As for his daily activities, claimant testified that he could not take care of his
personal needs; his wife helps him to bathe and dress. He does not leave the
house except to visit his father. Sometimes he watches television or listens to
the radio. He cannot help with household chores and does not drive. During the
day, he sits or stands on the balcony; he never walks.

Claimant described his pain as constant; it starts in his lower back and spreads
to his buttocks, thighs, legs and feet. He also complained of "palpitations" in
his bones. He does not sleep well due to the pain and cramps in his legs. In
addition to his back pain, he suffers from headaches and nosebleeds. He takes
medication which relieves the pain for about two hours.

Claimant also takes medication for a dysthymic disorder. He stated that he

hears voices calling his name and sees shadows. He is irritable and noises
bother him. He has problems relating to people and prefers to be alone. He has
received sporadic therapy for this impairment at the local mental health center.

II.
6

The ALJ determined that claimant has a possible herniated disc at L5-S1, back
pain and an affective disorder which alone or in combination did not meet the
listings. He credited claimant's allegations of pain to the extent that claimant
was precluded from engaging in strenuous work-related activities. Nonetheless,
the ALJ found that claimant retained the residual functional capacity (RFC) to
perform the exertional requirements of work except to the extent that claimant
could not lift over ten pounds. Also, he could not sit, stand or walk for over one
hour at a time; however, claimant could perform each of these activities for up
to six hours per eight-hour workday. He could stoop and kneel only
occasionally. Aside from these limits, claimant retained the capacity to perform

the full range of sedentary work.

7

The ALJ determined that Rule 201.25 of Table 1 of the Medical-Vocational

Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (1992) (the "Grid"), would
direct a finding of "not disabled" for a person such as claimant-a younger
individual with a limited education (7th grade) and no transferable work skills.
Because claimant's capacity for the full range of sedentary work had not been
"significantly compromised" by his nonexertional limits, the ALJ used Rule
201.25 as a framework to conclude that claimant was not disabled. In so
finding, the ALJ stated that claimant's mental impairment did not impose "more
than slight limitations in those areas considered relevant to the capacity to
perform work-related activities."

III.
8

On appeal, claimant essentially argues that his back condition prevents him
from engaging in even sedentary work. He also avers that the ALJ erred in
applying the Grid on the ground that his nonexertional impairments-pain and
his emotional condition-significantly limit his ability to perform the full range
of sedentary work. We address these issues separately.

A. Back Condition
9

The record contains conflicting evidence concerning the effect of claimant's

back problem on his physical capabilities. X-ray results showed a 20 to 25
percent narrowing of the disc space at L5-S1, suggestive of a bulging or
herniated disc. Also, a C-T scan revealed a possible bulging or herniated disc at
L4-L5 with a slight swelling of the left nerve root.

10

Over the course of his treatment at the State Insurance Fund, claimant's
condition varied. For example, on September 30 and October 13, 1988,
claimant exhibited persistent lumbar muscle spasm and limited range of motion.
However, a November 2, 1988 special medical report stated that claimant's
back was well and there was no muscle spasm. In addition, claimant's range of
motion was normal and there were no neurological deficits. The report
concluded that claimant could perform light work and should be referred to
vocational rehabilitation. Although claimant exhibited marked limitation in the
movement of his trunk on November 7, 1988, there still was no significant
muscle spasm and claimant could walk without difficulty. When claimant was
discharged from the SIF in April 1989, he had residuals consisting of slight
spasm of the para-vertebral muscles with slight limitation of movement of the
trunk in all directions. Claimant refused a referral to vocational rehabilitation.

11

A neurological evaluation performed in July 1989 revealed no evidence of

paravertebral muscle spasms or motor atrophy; there was normal strength in all
muscles and no motor reflex or sensory disturbances. Claimant's gait and
posture were normal. He refused to bend his spine. In January 1990, claimant
was again examined by a consulting neurologist. At this time, claimant could
not walk on his heels or toes, exhibited some weakness of the left toe and had
spasm in his paravertebral muscles. His range of motion was limited. 1

12

A nonexamining physician completed an RFC form in August 1989. This form

reveals that claimant can frequently lift and carry up to ten pounds and
occasionally can lift and carry twenty pounds. He can only occasionally stoop
and crawl. His disc pathology limits his ability to use his lower extremities to
push and pull. However, he can sit, stand and walk for up to six hours per work
day.

13

The medical findings outlined above amply support the conclusion that
claimant retained the ability to meet the exertional demands of sedentary work.
Muscle spasm and limits in range of motion were not consistently present.
Further, claimant rarely exhibited any neurological or motor deficits. Finally,
the RFC assessment indicates that claimant's disc problems would not prevent
him from working at the sedentary level. Because "a reasonable mind,
reviewing the evidence in the record as a whole, could accept it as adequate to
support his conclusion," we must uphold the Secretary's factual determinations.
Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st
Cir. 1981).

B. Nonexertional Impairments
14

Next, claimant alleges that the ALJ did not properly credit his complaints of
totally disabling pain. We agree that there exists an objective medical
impairment-bulging or herniated discs at L4-L5 and L5-S1-that can reasonably
be expected to cause pain. See Avery v. Secretary of Health and Human
Services, 797 F.2d 19 (1st Cir. 1986). Nonetheless, as described above, the
dearth of evidence of motor, sensory or strength deficits conflicts with the level
of pain claimant alleges. Further, claimant testified that medication relieved the
pain for up to two hours. Because the ALJ diligently considered the factors
outlined in Avery, we find that his decision concerning the level of claimant's
pain is supported by substantial record evidence and did not preclude reliance
on the Grid.2

15

Claimant's mental impairment presents a closer question. Absent significant

nonexertional limitations, the Grid provides a "streamlined" method by which

the Secretary can sustain his burden of proof at step five of the sequential
evaluation process. Ortiz v. Secretary of Health and Human Services, 890 F.2d
520, 524 (1st Cir. 1989) (per curiam); Sherwin v. Secretary of Health and
Human Services, 685 F.2d 1, 2 (1st Cir. 1982), cert. denied, 461 U.S. 958
(1983). However, where a claimant has a nonexertional impairment in addition
to an exertional limit, the Grid may not accurately reflect the availability of
jobs such a claimant could perform. Ortiz, 890 F.2d at 524; Gagnon v.
Secretary of Health and Human Services, 666 F.2d 662, 665 n.6 (1st Cir. 1981).
16

The decision to rely on the Grid in this situation depends upon whether
claimant's mental impairment "significantly affects [his] ability to perform the
full range of jobs" at the sedentary level. See Lugo v. Secretary of Health and
Human Services, 794 F.2d 14, 17 (1st Cir. 1986) (per curiam); Ortiz, 890 F.2d
at 524. If the occupational base is significantly limited by this impairment, the
Secretary erred in using the Grid to carry his burden at step five. See Ortiz, 890
F.2d at 524. In such a case, the testimony of a vocational expert generally
would have been required. Id.

17

Here, the ALJ essentially determined that claimant's emotional condition was
not severe and thus, did not impinge on claimant's ability to engage in the full
range of sedentary, unskilled work. There are two distinct sets of mental
capabilities which are required for the performance of unskilled work. Id. at
526; Social Security Ruling (SSR) 85-15. These are (1) the intellectual ability
to perform such work and (2) the ability to cope with the demands of the work
environment per se. Id.

18

As for the first category-the ability to carry out simple instructions, respond to
supervision and cope with coworkers-we believe that there is sufficient
evidence to support the ALJ's conclusion that claimant's dysthymic disorder did
not significantly impair his functioning. A consultative examination performed
by a psychiatrist in May 1990 indicates that claimant was coherent, relevant, in
contact with reality and completely oriented. His thought processes were
organized and there was no evidence of delusions or hallucinations. His
memory was intact. Although his attention, concentration and retention were
"slightly diminished," claimant's judgment and reasoning were not impaired.
The psychiatrist diagnosed a mild dysthymic disorder; claimant's prognosis was
fair.

19

This psychiatrist also completed a mental RFC assessment. He indicated that

claimant's abilities to maintain attention and to understand, remember and carry
out both complex and detailed job instructions were good. His capacity to deal
with simple instructions was unlimited. He also was rated as having good

abilities in the areas of using judgment, interacting with supervisors, relating to

coworkers and functioning independently.
20

The second category includes the ability to remain in the workplace the entire
day and to attend work regularly and punctually. In this area, claimant was
rated as being capable of demonstrating responsibility, relating predictably in
social situations and behaving in an emotionally stable manner. However, his
ability to deal with "work stress" was only fair. Fair is defined on the RFC form
as "seriously limited but not precluded."

21

Given the evidence anent claimant's limited capacity to deal with "work stress,"
his mental impairment might well be deemed of some severity.3 But, we
believe that the ALJ's reliance on the Grid in this particular situation was
nevertheless appropriate (although by no means inevitable). See Ortiz, 890 F.2d
at 524 (explaining that claimant's mental impairment, even if severe, is not
considered disabling unless it has eroded the occupational base for the full
range of sedentary, unskilled work). Aside from the finding that claimant was
seriously limited in his capacity to confront the stress of work in general, the
examining psychiatrist concluded that claimant's abilities in the more specific
areas of dealing with the work environment-maintaining concentration, being
reliable, behaving in an emotionally stable manner and accepting supervisionwere good. Also significant is the fact that claimant's situation does not place
him anywhere near the dividing line between disabled and not disabled under
Table 1 of the Grid. See id. at 527-28.

22

For the foregoing reasons, the judgment of the district court is affirmed.

Neither of these physicians filled out RFC assessments despite the requirement
in the regulations that a complete consultative examination should include such
findings. See 20 C.F.R. 404.1519n(c)(6)

We also note that claimant's limitations in stooping and crawling-nonexertional

impairments-do not significantly limit his access to the full range of sedentary
work. See Social Security Ruling 85-15 (to meet requirements of sedentary
work, an individual would need to stoop only occasionally and would rarely be
required to crawl); cf. Frustaglia v. Secretary of Health and Human Services,
829 F.2d 192, 195 (1st Cir. 1987) (per curiam)

An impairment is not severe only when it has no more than "a minimal effect
on the person's ... mental ability ... to perform basic work activities." SSR 85-28